ADDITIONAL TERMS AND CONDITIONS FOR THIRD PARTY RESOLD SERVICES
IMPORTANT: PLEASE READ THESE ADDITIONAL TERMS AND CONDITIONS OF FOR THIRD PARTY RESOLD SERVICES CAREFULLY.
THESE TERMS AND CONDITIONS GOVERN CLIENT’S PURCHASE OF (A) SOFTWARE-AS-A-SERVICE, INFRASTRUCTURE-AS-A-SERVICE, PLATFORM-AS-A-SERVICE, AND ANY OTHER CLOUD-BASED SOFTWARE, APPLICATIONS, SERVICES (INCLUDING HOSTED CLOUD SERVICES), FUNCTIONS OR RESOURCES MADE AVAILABLE FOR USE BY CLIENT OR ITS END-USERS ON DEMAND, VIA THE INTERNET, OR THROUGH A THIRD-PARTY PROVIDER’S SERVICES AND (B) OFF-THE-SHELF NON-CUSTOMIZED SERVICES (COLLECTIVELY, “RESOLD SERVICES”) FROM PC XCALABLE SALES CORPORATION, MOREDIRECT, INC., AND GOVXCALABLE, INC., ALL OF WHICH DO BUSINESS AS XCALABLE (COLLECTIVELY “XCALABLE”) AND ARE LIMITED TO THESE TERMS. ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS IN ANY FORM DELIVERED BY YOU (“CLIENT”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
BY PLACING AN ORDER FOR RESOLD SERVICES DESCRIBED IN XCALABLE’S SALES QUOTE, INVOICE, PURCHASE ORDER FORM, OR OTHER DOCUMENTATION PROVIDED BY XCALABLE (COLLECTIVELY, “XCALABLE ORDER FORMS”), CLIENT AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS UNLESS CLIENT AND XCALABLE HAVE SIGNED A SEPARATE WRITTEN AGREEMENT WHICH EXPRESSLY OVERRIDES THESE TERMS AND GOVERNS THE RECEIPT OF RESOLD SERVICES, IN WHICH CASE THE SEPARATE AGREEMENT WILL CONTROL.
ANY GENERAL DESCRIPTION OF THE RESOLD SERVICES AND/OR THE RESULTS THEREOF POSTED ON ANY XCALABLE WEBSITE DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN XCALABLE AND CLIENT.
Application of Terms; Client Acknowledgment
These Additional Terms and Conditions for Third Party Resold Services together with the Terms and Conditions of Sale, which are incorporated herein by reference (collectively referred to herein as these “Terms”), are the only terms that govern the relationship between Client and Xcalable with respect Client’s purchase of the Resold Services and constitute a binding contract between Client and Xcalable.
Third Party Resold Services
Client acknowledges that it is receiving the Resold Services directly from a third party (the “Third Party Service Provider”) pursuant to the Third Party Service Provider’s standard terms and conditions or such other terms as agreed upon by Client and the Third Party Provider (“Resold Services Terms and Conditions”). Accordingly, Client shall consider the Third Party Service Provider to be the contracting party and the Third Party Service Provider shall be the party responsible for providing the Resold Services to the Client. The Client will look solely to the Third Party Provider for any loss, claims or damages arising from or related to the provision of such Resold Services.
Resold Services Warranties
Client expressly acknowledges that Xcalable is not the provider of the Resold Services purchased by Client hereunder and the only warranties offered are those of the Third Party Service Provider, not Xcalable. In purchasing the Resold Services, Client relies on the Third Party Provider’s service descriptions and the terms and conditions set forth in the Resold Services Terms and Conditions only and not on any statements, specifications, service descriptions or other specifications representing the Resold Services that may be provided by Xcalable. Client expressly waives any claim that it may have against Xcalable based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights with respect to the Resold Services and also waives any right to indemnification from Xcalable against any such claim made against Client by a third party.
Xcalable makes no warranties to Client and Client hereby acknowledges that Xcalable makes no warranties in regard to the applicability of all laws affecting, without limitation the manufacture, performance, sale, packaging and labelling of the Resold Services which are in force within Client’s territory or any part of it (“Local Laws”). Client must satisfy itself that the Resold Services comply with the Local Laws in force from time to time.
Client further acknowledges and agrees that Xcalable makes no representations, warranties or assurances that the Resold Services are designed for or suitable for use in any high risk environment, including but not limited to aircraft or automobile safety devices or navigation, life support systems or medical devices, nuclear facilities, or weapon systems, and Client shall indemnify, defend and hold Xcalable and its affiliates, and its and their directors, officers, employees and agents harmless from any loss (of any kind), cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) arising from any such use of the Resold Services. Client further agrees to review and comply with the Third Party Provider’s disclaimers and restrictions, if any, regarding the use of the Resold Services, in high risk environments.
EXCEPT AS SET FORTH IN ANY XCALABLE ORDER FORMS FOR THE RESOLD SERVICES, AND SUBJECT TO APPLICABLE LAW, XCALABLE MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, DURABILITY, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF, OR RELATED TO, THE RESOLD SERVICES OR THE HARDWARE OR SOFTWARE USED TO DELIVER THE RESOLD SERVICES. FURTHERMORE, XCALABLE DOES NOT WARRANT THAT THE RESOLD SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE OR THAT THE RESOLD SERVICES WILL MEET CLIENT’S REQUIREMENTS. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY THIRD PARTY SERVICE PROVIDER’S WARRANTY. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE TERMS OF THIS PARAGRAPH DO NOT AFFECT THE TERMS OF ANY WARRANTIES FROM THE THIRD PARTY SERVICE PROVIDER. CLIENT ACKNOWLEDGES THAT NO REPRESENTATIVE OF XCALABLE OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY THAT IS NOT IN THESE TERMS.
Client shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Client shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Resold Services. XCALABLE, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN XCALABLE WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CLIENT ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE RESOLD SERVICES.
Xcalable shall not be liable for any loss or damage suffered or incurred by Client arising from Xcalable’s delay or failure to fulfill or otherwise discharge any of its obligations under these Terms or any Xcalable Order Forms or where such delay or failure is caused by any non-performance of its obligations by Client, industrial dispute, sudden or substantial depletion of Xcalable’s staff, or any event or circumstance arising which is beyond the reasonable control of Xcalable (including but not limited to any industrial dispute affecting any third party, carrier delays, embargos, acts of God or acts or laws of governmental regulations or government agencies, severe weather conditions, fire, flood, disaster, failure of power, civil riot, war or terrorism).
Pricing Information; Availability Disclaimer
Xcalable reserves the right to make adjustments to pricing and Resold Services offerings for reasons including, but not limited to, changing market conditions, Resold Services discontinuation, Resold Services unavailability, and Third Party Service Provider price changes. Therefore, Xcalable cannot guarantee that it will be able to fulfill Client’s orders.
Return, Cancellation, Termination, Renewal, and Payment
The duration of the Resold Services is set forth in the Xcalable Order Forms. Orders may be returned or cancelled only upon the Third-Party Service Provider’s (i) agreement to accept return or cancellation, (ii) release of Xcalable from its payment obligations, and (iii) refund to Xcalable of all payments made in association with the order. Client agrees to pay the costs of return packaging, shipping, and handling, as well as any restocking fees that a Third-Party Service Provider may charge in association with an accepted return or cancellation. Should a Third-Party Service Provider refuse to allow return or cancellation, then Client must pay Xcalable all amounts owed under the order. If Client elects to finance an order through a third-party and Xcalable is not paid by that third-party for any reason, Client agrees to promptly pay Xcalable (no more than 7 days from the third-party’s rejection of payment) all amounts owed under the order. Termination of any automatically renewing orders containing third-party products and services is subject to the notice requirements of the Third-Party Service Provider. Client must notify its Xcalable Account Manager in writing of its intent to not renew such orders at least 30 days in advance of the deadline established by the Third-Party Service Provider for non-renewal notices. Client must pay for any orders which renew because of Client’s failure to provide timely notice as specified herein. Client will reimburse Xcalable for any costs and attorneys’ fees incurred by Xcalable in enforcing Client’s payment obligations.